[co-authors: Kimberly Hughes Gillespie, Erin Whaley]*

A group of Michigan-based health care providers and one of their patients are the latest to assert constitutional claims related to COVID-19 shutdown orders. Unlike other businesses challenging shutdown orders, these providers allege not only economic harm, but also that the Michigan shutdown orders are harming public health.

On May 12, the medical providers, comprising three outpatient surgery centers and primary care physician practices, along with an individual patient, filed a lawsuit in federal court against Michigan Gov. Gretchen Whitmer. In their complaint, the plaintiffs challenge the constitutionality of Gov. Whitmer’s executive orders and demand the reopening of their health care practices.¹ Michigan’s shutdown orders prohibit nonessential medical care, defined as a “medical or dental procedure that is not necessary to address a medical emergency or to preserve the health and safety of a patient, as determined by a licensed medical provider.” The complaint alleges that this broad definition encompasses up to 95 percent of the procedures typically performed by the plaintiff providers. And while the governor’s executive orders appear to provide practitioners latitude to determine whether a procedure is essential, the plaintiffs argue that the penalties for violating the executive order are so steep that practitioners are unwilling to take the chance that their medical judgment might be second-guessed.

In addition to the “dire financial outlooks” that the medical providers allege they face, they raise the interesting and significant concern that the governor’s orders actually harm the health of their patients. Specifically, they allege that the orders prohibit health care providers from providing preventive and vital — but “nonessential” as defined by the orders — medical care to their patients. As a result, patients cannot receive the care they need, which exacerbates their otherwise treatable conditions and causes them to endure “agonizing pain.” For example, the patient who joined the medical providers in this lawsuit was scheduled to have his right knee replaced on March 20, 2020, but he was not able to have the surgery given the governor’s orders. To make matters worse, he has not been able to get the follow-up care he needs for surgery he already had on his left knee. The complaint states that he has been “in excruciating pain and unable to get prescription pain medication until he can be seen on June 11.”

The plaintiffs’ complaint also refers to a patient who had a stent placed in his ureter as a result of a kidney stone. The stent was scheduled to be removed in two weeks, but, because of the governor’s orders, the procedure could not be scheduled for two months and resulted in a bladder and kidney infection that ultimately required hospitalization and emergency surgery.

Economically, because the medical providers cannot provide medical treatment deemed “nonessential,” they are facing “extreme revenue shortages,” have been forced to furlough employees, and face a potential permanent shuttering of their businesses.

The medical providers allege that the governor’s actions violate various provisions of the Michigan and U.S. constitutions. As a threshold matter, they claim that the governor’s unilateral extension of her executive orders violates the Michigan Constitution’s Separation of Powers clause, rendering the orders unenforceable.

Of more national significance, the medical providers further claim that the orders themselves violate various provisions of the U.S. Constitution.

For example, the medical providers bring a procedural due process claim, alleging that they have been deprived of a property interest — their ability to engage in business operations — without a post-deprivation hearing allowing them to challenge the designation of their businesses as nonessential.

They further allege substantive due process violations, arguing that the orders interfere with the right to interstate travel and the right to practice one’s chosen profession. They argue that because Michigan has “flattened the curve” — and without some assessment that the medical providers’ practices would contribute to the spread of COVID-19 — the government can no longer justify interfering with these rights.

Finally, the medical providers allege that the orders violate the U.S. Constitution’s commerce clause because they impose substantial burdens on the medical providers’ businesses that outweigh the orders’ purported benefits, and thus unduly burden interstate commerce.

It will be interesting to see whether this may be the beginning of a trend among health care providers to challenge shutdown orders that have not only caused steep revenue declines, but also left their patients languishing at home with untreated and serious, but not emergency or coronavirus-related, medical conditions.

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